“If you are correct in stating that geographic birth creates citizenship, how do you explain the fact that American Indians and their children were not citizens until Congress passed a law in 1924 making them citizens? If Congress had to pass a law making the children of someone born here, someone who never lived outside of the United States and never had allegiance to another country, a citizen, why would they believe that the children of someone who is a citizen of another country and in this country illegally, a U.S. citizen?”

— Ed

Hi Ed,

The answer lies in history, context and the fact that birthright citizenship isn’t based on parental allegiance. At the time of the 14th Amendment in the late 1860s, Native American tribal citizens were understood to be an exception to the general rule of birthright citizenship. Their historical exclusion was due to their unique political status, which doesn’t weaken the citizenship case for babies born to noncitizens in the U.S. today, whether those noncitizens are here legally or not.

Let’s go back to the text of the amendment and work from there. The citizenship clause says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The “subject to the jurisdiction thereof” language makes limited exceptions to birthright citizenship for people who aren’t fully subject to U.S. law. That was mainly understood to exclude children of foreign diplomats, hostile occupying forces and members of Native American tribes. Because of the 1924 law you mentioned (the Indian Citizenship Act), plus the fact that we aren’t occupied by hostile forces, that leaves today’s exception essentially limited to diplomats’ children.

Tribal citizens were among those limited exceptions due to their special status, with tribes maintaining their sovereignty even while physically being within the United States. It’s a complex relationship that doesn’t compare to noncitizens who have no immunity from U.S. jurisdiction.

So, if a citizen of another country is here illegally and has a child today, that child would be subject to U.S. jurisdiction, without the complexity historically raised by the relationship between tribal governments and the United States. The idiosyncratic case of tribal sovereignty and all it entails would therefore seem to be a separate historical issue that doesn’t bear on the question of birthright citizenship for children of noncitizens today — at least not in a way that weakens the rights of the latter group.

And even if we ignored the distinctive tribal context and history, which noncitizens don’t share, the crux of the claim that noncitizens’ children are less deserving of citizenship than the children of Native Americans is ultimately a parental allegiance argument. I explained last week why using parental allegiance as a standard is antithetical to the notion of birthright citizenship enshrined in the 14th Amendment. To the extent that the right can be viewed through an allegiance lens, it’s relevant such that birth in the U.S. itself creates allegiance for the child, regardless of parentage. It’s a level playing field, subject to limited exceptions.

Of course, if the Supreme Court ultimately embraces parental allegiance, then all bets are off. But I’ll point out again that administration lawyers don’t seem confident that the court will side with them, or else they might have sought legal approval of Trump’s executive order outright, rather than mounting a narrower procedural claim that doesn’t require getting to the heart of the matter.

Given that piecemeal litigation strategy and the fact that we’re still awaiting a ruling on the procedural injunction issue, we may be far from learning what the justices think of your question. But the administration isn’t rushing for an answer.

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